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Death penalty foes may try to repeal Colorado's ultimate punishment

By Jessica Fender The Denver Post

Posted:
12/26/2012 12:01:00 AM MST

Updated:
12/26/2012 06:46:32 AM MST

Foes of capital punishment for months have quietly sought advice and support for a campaign to end Colorado's death penalty even as a series of horrific, high-profile murders have unfolded at home and nationwide.

Their adversaries — and some traditional allies — question the timing, saying fresh memories of mass shootings in Aurora and elsewhere, the slaying of 10-year-old Jessica Ridgeway and other grisly crimes could turn lawmakers against potential legislation in 2013.

But those incidents could also strengthen efforts to end capital punishment, said state Rep. Claire Levy, D-Boulder, who pointed out that the death penalty is either unlikely or impossible in many of the state's most recent cases.

"These are horrific crimes, but the death penalty will probably not be imposed. If anything, it reinforces the notion that (the death penalty) is outmoded," Levy said. "Why do we have this law on the books if it doesn't prevent these types of crimes?"

Three years after a prior attempt to end the death penalty failed, the political playing field looks more favorable, and advocates like Levy have added research critical of how the death penalty is applied to their arsenal.

It's too early to say whether legislation will be drafted for 2013, said Levy, who's still polling fellow lawmakers on their views.

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But the idea is to funnel any savings from lengthy and complex death-penalty litigation — estimated in 2009 to be about $1.5 million a year — to solving cold cases and possibly mental- health treatment or other crime-prevention programs.

Age and mental illness

Death is a rarely sought punishment in Colorado. The state has executed one person since capital punishment was reinstated in 1976.

There are three people currently on death row, including two men who killed a state representative's son.

Age and mental illness could prevent more recent accused killers from joining them.

College student Austin Sigg, 17, confessed to killing Jessica Ridgeway in October. Because of his age, the most serious penalty he can face is life in prison with the possibility for parole after 40 years.

Accused theater shooter James Holmes' defense team has already laid groundwork for an insanity defense. Likewise, Ari Liggett, accused of poisoning and dismembering his mother, has a long history of mental illness according to his mother's fiancé.

The U.S. Constitution bans the execution of insane people incapable of understanding their wrongdoing or the punishment that follows.

In other high-profile murders across the U.S. — the mass shooting of children in Newtown, Conn., or the murder of worshipers at a Sikh temple in Wisconsin — no gunman survived to be prosecuted

But Coloradans nonetheless should think of these examples when considering the death penalty, says Attorney General John Suthers.

He said not every shooter is insane, and in some instances the only suitable punishment — for the safety of the public — is death. He hopes lawmakers keep recent events in mind.

"The Colorado legislature ought to ask itself if there are crimes being committed in Colorado today where citizens could decide that life in prison is not adequate — cases where without (the death penalty), society appears defenseless," Suthers said.

But Suthers noted there have been political changes at the statehouse since a similar proposal failed in 2009, and said now is "an ideal time" for anti-death penalty advocates to push their cause.

On May 7, 2009, state senators called out their votes on House Bill 1274 — a proposal to end the death penalty — one by one. The vote came on the last day of the legislative session and after days of fierce debate.

In the end, four Democrats joined Republicans and the measure failed by one vote.

Then-Gov. Bill Ritter, a former Denver district attorney, had declined to say whether he would sign or veto the legislation, making it tough for some lawmakers to risk a controversial vote to end capital punishment.

But today, the political landscape has changed.

A new governor is in office. While Gov. John Hickenlooper said in 2010 he did not support abolishing the death penalty, his views are less certain now.

"Capital punishment is another one of those things where I haven't come to rest on a position," Hickenlooper said in a recent interview with The Denver Post. "That decision is going to come sooner than later."

A spokesman for Hickenlooper said the governor has not discussed potential death-penalty legislation with lawmakers this year

And one of the four Democrats who defeated the bill in 2009 — now Senate President-elect John Morse, D-Colorado Springs — is changing his mind.

"I recognize that usually when you have an Aurora or a Columbine, you end up with somebody who's so profoundly mentally ill that we really don't have the death penalty as an option," said Morse, a former police officer. "If, in fact, it is introduced as a bill this year, I will struggle with it but likely will end up voting to repeal (the death penalty)."

Morse said the disparities in who receives the death penalty — all three death row inmates are African-American — bothers him.

Seeking death penalty

Recent research out of the University of Denver revealed that Colorado prosecutors secured death sentences in only three of 500 eligible cases for the decade ending in 2010. Researchers cited U.S. Supreme Court opinions stating arbitrary imposition of the death penalty amounts to the type of cruel and unusual punishment banned by the U.S. Constitution.

Suthers said he has plans to narrow the situations in which the death penalty can be sought in order to quell those constitutional concerns.

Should a bill be drafted, lawmakers will also have a firsthand perspective on the death penalty from one of their own.

The two men who killed the son of state Sen. Rhonda Fields, D-Aurora, and his fiancée in 2005 are currently appealing their death penalty convictions.

Javad Marshall-Fields, who had witnessed a murder, was shot to death before he could testify in court. Vivian Wolfe was with him in the car at the time.

Months of post-conviction hearings for Sir Mario Owens, one of the convicted murderers, are continuing in Arapahoe County District Court, where teams of top prosecutors and defense attorneys are poring over trial counsel's alleged missteps and minute policy details that informed the way Owens' defense was handled.

Fields did not return a call for comment but in the past has not objected to the death penalty for her son's killers.

Levy acknowledged that few things are more powerful under the dome of the state Capitol than a compelling personal story. Any death-penalty repeal Levy drafted wouldn't be retroactive, she said.

"We have to be sensitive to the fact that she experiences this issue in a way that is unique," Levy said. "Certainly, I'm respectful of how difficult this is for her."

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